and enacts, “that, unless it shall appear to the satisfaction of such court that all the property of the insolvent is situate, and all the debtors and creditors resident, within the limits of the charter of the East India Company, then, until the expiration of twelve calendar months from a notice to be published in the London Gazette of the petition or adjudication of or against any insolvent as hereinafter is mentioned, the assignee or assignees shall reserve the full amount of one-third part of all the property of the said insolvent which shall have been got in, and shall make a dividend amongst the creditors of the said insolvent, to the amount of the remaining two-third parts only, which third part so to be reserved as aforesaid shall in the meantime be invested or disposed of in such way as such court shall order, and shall not remain in the hands of such assignee or assignees; and at the expiration of the said term of twelve calendar months it shall be lawful for the assignee or assignees of such insolvent to apply to such court for a return of the said third part so reserved as aforesaid, in order that the same may be so distributed amongst the creditors as to place them all upon an equal footing; and upon such third part so reserved as aforesaid being restored to such assignee or assignees, such assignee or assignees shall forthwith proceed to take an account of the ueuts of the said insolvent admitted and established in the said court, and of the sum or sums which shall or may have been paid by way of dividend to any of such creditors, and shall distribute the fund then in the hands of such assignee or as[*373 signees, so as to place all the creditors of the said insolvent, whether Indian or British or foreign, upon a just and equal footing, and so as that every creditor whose debt or claim shall be admitted or established in the said court shall receive a rateable and proportional part of the assets of the said insolvent, according to the amount of his debt, without reference to the time at which such debt shall have been claimed." Then the 61st section enacts, "that, if any such insolvent, his heirs, executors, or administrators, shall, after such order for discharge in the nature of a certificate under this act as aforesaid, be sued or arrested either on mesne or final process, or execution shall issue against his or their property, for any debt, claim, or demand from which the said insolvent shall have been discharged by such order, on his or their application to any court having power to stay such proceedings, or to discharge from such arrest, or to set aside such execution, and, upon proof to the satisfaction of such court of such order, and that the debt or claim for which such proceedings are had is the same from which the said insolvent has been discharged by such order as aforesaid, such proceedings shall be stayed, and he or they shall be discharged from such arrest, and such process of execution shall be set aside, and all further proceedings in the suit in which such arrest or execution was shall also be stayed, and the said court shall have power to award costs to the said insolvent, or his heirs, executors, or administrators as aforesaid, in case the said proceedings shall appear to the said court to have been taken after notice of the said order, and without any reasonable cause for impeaching the same, or to have been otherwise oppressive or vexatious." [BYLES, J.-Was the debt here payable in England?] No doubt it was. [WILLES, J.-You had better look at the case of *Gibbs v. Fremont, 9 Exch. 25,† before you admit that.] The

59th section enacts, that, where the estate pays one-third of the [*374

insolvent's debts, or where creditors to that amount consent, the court may grant an order nisi for the final discharge of the insolvent, appoint a time for hearing and direct notices to be given and then comes a proviso which may give rise to some difficulty," Provided always, that such order shall not affect any creditor without the limits of the charter of the East India Company, unless notice of the said order nisi shall have been directed to be given in the Gazette in manner aforesaid, and a period of twelve calendar months shall have elapsed between the date of the said order nisi and the date of the said order to make the same absolute." The learned judge at Chambers thought that proviso referred to creditors residing without the limits. [WILLES, J.-The 83d section, which is an analogous provision, throws some light upon that proviso. That section says, "that, in case any fiat in bankruptcy, whether under the provisions of this act or otherwise, shall be issued against such insolvent trader as aforesaid, upon which such insolvent shall be declared a bankrupt before such order for discharge in the nature of a certificate as hereinafter mentioned, then and in such case such order shall not operate as a discharge from the debt, claim, and demand of any creditor who shall not have been resident within the limits aforesaid at any time between the filing of the insolvent's peton of the adjudication, as the case may be, and the making of such order." It is submitted that these plaintiffs were creditors in India, though residing in England. [BYLES, J.-Why not put this matter upon the record?] It would be a needless expense to plead this, if the court has power to give relief in the summary way pointed out by s. 61. [BYLES, J.-Nobody doubts the power of the *court: the only question is, whether this is a proper case for the exercise of it.]

*375]

COCKBURN, C. J.-The impression of the court is decidedly adverse to the application. We should be very reluctant to adopt a course which would preclude the plaintiffs from taking the opinion of a court of error. WILLES, J.-The expense would not be materially increased by putting this defence (if it is one) upon the record; for, the 74th section of the statute makes certified copies of the proceedings evidence in all courts. The rest of the court concurring, Holl took nothing.

COX v. MUNCEY. April 29.

No action will lie for enticing away an apprentice, unless there be a valid contract of appren

ticeship.

THE first count of the declaration stated, that, by deed dated the 18th of October, 1853, one Kimpton Muncey, being then an infant of the age of sixteen, or thereabouts, by and with the consent of the defendant, his father, did put himself apprentice to the plaintiff, to learn his trade and business, to wit, the trade and business of a stone and marble mason and letter-cutter, and with him after the manner of an apprentice to serve from the 18th of October, 1853, until the 25th of December, 1857, during which time the said apprentice was by the terms of the said deed faithfully to serve the plaintiff, and not to absent himself from the plaintiff's service unlawfully day or night, but in all things as a

*faithful apprentice to behave himself towards the plaintiff and [*376 all his during the said term; and for the true performance of the said deed by the said apprentice on his part, the defendant did by the said deed covenant with the plaintiff; and the plaintiff did by the said deed agree to give the said apprentice 18. per week for the first two years, and 2s. 6d. per week for the last two years of the said term, and that he the plaintiff his said apprentice the art of a stone and marble nason and stone-cutter, which he then used, by the best means that he could, should teach and instruct, and cause to be taught and instructed, finding unto his said apprentice sufficient meat, drink, pocket-money as aforesaid, lodging, and all other necessaries during the said term: and, by the said deed, it was agreed, that, for the considerations aforesaid, the plaintiff should be paid the sum of 157. on the said 18th of October, and a further sum of 14l. 108. at Christmas, 1853; and the plaintiff hath in all things performed the terms and conditions of the said deed on his part, except so far as he was prevented therefrom by the unlawful act and default of the said apprentice hereinafter mentioned: Breach, that the said apprentice did not during the said term faithfully serve the plaintiff, but wrongfully and unlawfully absented himself from the plaintiff's service for divers long spaces of time during the said apprenticeship, whereby the plaintiff lost the benefit, profit, and advantage which he would otherwise have derived from the service of the said apprentice for a long time, to wit, for two years.

The second count stated that, in consideration that the plaintiff would, at the defendant's request, take the said Kimpton Muncey as his apprentice, to learn the trade and business in the first count mentioned, and upon the terms and conditions therein mentioned, he, the defendant, promised the plaintiff that the said *Kimpton Muncey should faithfully serve the plaintiff during the said term, and as in the [*377 said first count mentioned: Breach, that, although the plaintiff did thereupon accordingly take and receive the said Kimpton Muncey as such apprentice as aforesaid, upon the terms as aforesaid, and duly performed the said contract on his part in all things save and except as far as he was by the default of his said apprentice hereinafter mentioned prevented from so doing, yet the said apprentice did not nor would faithfully serve the plaintiff as aforesaid, but, during the said apprenticeship, for divers long spaces of time, wrongfully and unlawfully absented himself from the plaintiff's service, against the will of the plaintiff, whereby the plaintiff was damnified as in the first count mentioned.

The third count stated that the said Kimpton Muncey then being such apprentice to the plaintiff as aforesaid, and before the said term of apprenticeship was expired, the defendant, well knowing the premises, but contriving and wrongfully and unjustly intending to injure the plaintiff in his aforesaid trade and business, and to deprive him of the service of the said Kimpton Muncey as such apprentice as aforesaid, and of the profits, benefits, and advantages which might and would otherwise have arisen from such service, whilst the said Kimpton Muncey was such apprentice as aforesaid, to wit, on the 24th of December, 1854, unlawfully, wrongfully, and unjustly enticed, persuaded, and procured the said Kimpton Muncey to depart from out such service of the plaintiff, and to enter the service and employment of the defendant: by means of which enticement, persuasion, and procurement, the said Kimpton Muncey,

whilst he was such apprentice as aforesaid, wrongfully and unjustly departed from out of the said service of the plaintiff, and entered into the *service and employment of the defendant, and had remained

*378] and continued, and been wrongfully and wilfully harboured, kept, and detained in the defendant's said service and employment for a long space of time, to wit, from thence hitherto, whereby the plaintiff had, to wit, for the space of two years, lost and been deprived of the service of the said Kimpton Muncey in his aforesaid trade and business, and of the profits, benefits, and advantages which might and would otherwise have arisen and accrued to him from such service, and had been and was otherwise greatly injured in his aforesaid trade and business: averment, that all things necessary to entitle the plaintiff to maintain this action existed and had happened before suit. Claim, 1507.

First plea, as to the first count of the declaration,-that the alleged deed is not the defendant's deed, nor did he the defendant covenant as alleged.

Tenth plea,-as to the second count,-that the said Kimpton Muncey did not become nor was he an apprentice to the plaintiff, nor bound to serve him as such apprentice.

Fifteenth plea,-as to the second count,-that the full sum or sums of money received or given, paid, agreed, or contracted for, with or in relation to the said Kimpton Muncey as such apprentice in the second count mentioned, was not truly inserted or written in words at length, or at all, in any indenture or other writing which contained the covenants, articles, contracts, or agreements relating to the service of the said Kimpton Muncey as such apprentice as in the second count mentioned, or otherwise, contrary to the form of the statute in such case made and provided.

Nineteenth plea,-to the third count,-the same as the fifteenth plea. *379] The plaintiff joined and took issue upon all the *defendant's pleas. He also demurred to the tenth, fifteenth, and nineteenth pleas, the grounds of demurrer stated in the margin respectively being as follows,-As to the tenth plea, "that it affords no answer to the second count, admitting, as such plea does, that the plaintiff received Kimpton Muncey as an apprentice;" as to the fifteenth plea, "that it affords no answer to the second count, admitting, as such plea does, that the plaintiff received Kimpton Muncey as an apprentice;" and, as to the nineteenth plea, "that it affords no answer to the third count, nothing in that plea appearing to justify the admitted enticement by the defendant to quit the plaintiff's service, and enter his own." Joinder.

The cause was tried before Crowder, J., at the sittings in London after last Trinity Term, when it appeared that the defendant's son, Kimpton Muncey, had been apprenticed to the plaintiff, a stone-mason in the City Road, by an indenture of the 18th of October, 1853; that the consideration money or premium agreed to be paid with the apprentice was 301., but that, in order to diminish the amount payable for stamp-duty, it was arranged that 297. 10s. should be inserted in the indenture as the premium paid, and that sum was accordingly so inserted, but not in words at length. It also appeared that the youth had served the plaintiff under the indenture for a considerable time, and that he had been inluced by the persuasions of the defendant to quit his service.

On the part of the defendant it was insisted, that, the indenture of

apprenticeship being void by force of the statute 8 Ann. c. 9, ss. 35, 39,(a) for not truly and in words at length setting forth the consideration or premium paid, the plaintiff was not entitled to maintain this action.

[*380

On the other hand, it was submitted, that, assuming the indenture to be void, it was enough, to entitle the plaintiff to recover, that the party enticed away was his apprentice de facto.

The learned judge, not being required to leave anything to the jury, directed a verdict for the defendant on the first and second counts, and for the plaintiff on the third, for the agreed damages of 137.

*Hawkins, in Michaelmas Term, obtained a rule nisi to enter [*381 a verdict for the defendant on the nineteenth plea to the third count, on the ground that the evidence given by the defendant at the trial proved the plea, and that the verdict on such plea was against the evidence. He cited The King v. The Inhabitants of Baildon, 3 B. & Ad. 427 (E. C. L. R. vol. 23), The King v. The Inhabitants of Amersham, 4 Ad. & E. 508 (E. C. L. R. vol. 31), 6 N. & M. 12 (E. C. L. R. vol. 36), The King v. Low, 3 C. & P. 62 (E. C. L. R. vol. 14), and the statute 55 G. 3, c. 184, Sched. Apprenticeship.

The court directed that the rule and the demurrers should come on together for argument.

W. G. Harrison for the plaintiff. (b)-The statute 8 Ann. c. 9 was recently under discussion in this court in the case of Westlake v. Adams, 5 C. B. N. S. 248. The question now turns entirely upon the third count of the declaration and the nineteenth plea. If that plea means that there was no valid indenture of apprenticeship, it is an immaterial traverse. [BYLES, J.-Can there be an apprentice otherwise than by

(a) The 35th section enacts, that "the full sum or sums of money received, or in anywise directly or indirectly given, paid, agreed, or contracted for with or in relation to every apprentice, shall be truly inserted and written, in words at length in some indenture or other writing which shall contain the covenants, articles, contracts, or agreements relating to the service of such apprentice, and shall bear date upon the day of the signing, sealing, or other execution of the same; upon pain that every master or mistress to or with whom, or to whose use, any sum of money whatsoever shall be given, paid, secured, or contracted for or in respect of such apprentice as aforesaid which shall not be truly and fully so inserted and specified in some such indenture or other writing, shall, for every such offence, forfeit double the sum so given, paid, secured, or contracted for."

And the 39th section enacts "that all such indentures or writings as aforesaid wherein shall not be truly inserted and written the full sum and sums of money received, or in anywise directly or indirectly given, paid, secured, or contracted for, with or in relation to such apprentice as aforesaid, or whereupon the duties payable by this act shall not be duly paid, or lawfully tendered, or which shall not be stamped, or lawfully tendered to be stamped, according to the tenor and true meaning of this act, within the respective times herein for that purpose severally and respectively limited, shall be void and not available in any court or place, or to any purpose whatsoever, and the apprentice whom the same shall concern or relate to shall in such case be utterly incapable of being free of any city, town, corporation, or company, and of following or exercising the intended profession, trade, or employment, any charter, law, or custom to the contrary notwithstanding."

(b) The points marked for argument on the part of the plaintiff were as follows:"That it is immaterial to the validity of the defendant's contract whether there was a binding contract of apprenticeship or not, and that therefore no good excuse is offered by him for the alleged breach of his contract, nor any justification afforded for the grievances complained of in the last count of the declaration: That the pleas demurred to are founded upon the assumption that the defendant's liability is dependent upon the validity of such contract of apprenticeship, and are therefore bad: And that a sufficient consideration for the defendant's contract arose out of the plaintiff's taking the apprentice at the defendant's instance upon the alleged terms and Ponditions."